According to the EEOC’s suit, “caregivers employed by RMC, a franchisee of Home Instead Senior Care, reported that an 80-year-old client in Alameda, Calif., repeatedly groped them, offered lewd com­ments about their breasts and buttocks, and made additional racially and sexually offensive comments while they were providing in-home assistance.” The EEOC claimed that the employer failed to act on employee complaints and even retaliated against one complaining caregiver by refusing to place her in other available assignments.

The employee who brought the charge to the EEOC said, “I’m hoping this settlement will encourage other in-home caregivers to realize that while we take care of people, we also deserve to be treated with respect and dignity, and the laws protect us from harassment even when our workplace is inside someone else’s home.”

Under a five-year consent decree settling the suit, RMC will pay $340,000 to five caregivers. San Oak Caring Hands, the entity that now owns and operates RMC’s Home Instead franchises, will institute thorough anti-harassment training and policies that emphasize prevention, prompt correction and compe­tent investigation. San Oak will engage a consultant to review discrimination matters and provide perio­dic reporting of its training, policies and complaint investigation to the EEOC.

EEOC Senior Trial Attorney Linda Ordonio-Dixon said, “It’s important that we send a clear message that harassment is not part of a caregiver’s job description and that employers must do what they can to prevent and correct any abuses, even if the workplace happens to be in a client’s home. In-home care­givers can be particularly vulnerable to harassment, and one of the EEOC’s top priorities is to defend vulnerable workers against discrimination.”

EEOC San Francisco District Director William Tamayo noted, “According to the U.S. Bureau of Labor Statistics, home health aides have been projected to be the fourth-fastest growing occupation in the nation. In fact, California has just passed legislation, AB 3082, ensuring that the state Department of Social Services develop anti-harassment training and a method to track cases of sexual harassment of in-home care providers.”

One of the difficulties in caring for persons with diminished capacity is the lack of impulse control. Some care recipients lack the ability to control their sexual comments and conduct. Placing employees in such an environment creates a risk for the employer, but the person still requires care. The company may have to choose between providing services to a client that requires services and protecting its employees from unlawful harassment. Having handled several similar cases, I know this is a very difficult decision.

There are steps employers can take to protect employees even if the client’s medical condition creates a potentially hostile work environment. Open communication channels are necessary, and the company has to ensure the employees know that their protection is important. If an employer cannot establish sufficient measures to protect the employees, the company may not be able to provide the services the client needs.

Original Article by Robert Nuddleman of the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Gbolahan Sarumi probably thought it was a good idea to appeal the Labor Commissioner decision. He obviously believed the employee was not entitled to the money awarded, or at least that Gbolahan was not responsible for the payment. He filed his appeal to Superior Court, and several weeks later filed the required bond. He probably didn’t know that when the appeal was later dismissed–even if it is dismissed through settlement–he would forfeit his right to recover the bond.

In Chavez v. Sarumi, the court had to decide whether a late-filed bond could be returned to the person who posted the bond, or if it had to be turned over to the employee. Employers appealing an adverse Labor Commissioner decision must:

first post an undertaking with the reviewing court in the amount of the order, decision, or award. The undertaking shall consist of an appeal bond issued by a licensed surety or a cash deposit, with the court in the amount of the order, decision, or award.

Labor Code §98.2(b)

Some court clerks refuse to accept the appeal without the bond or cash deposit. Others allow the employer to file the appeal and leave it up to the parties and the court to fight it out. In Chavez v. Sarumi, the court made it clear that:

“…when the appeal is dismissed without a settlement, and the employer fails to pay the amount awarded by the Labor Commissioner within 10 days of dismissal, section 98.2, subdivision (b) expressly provides for forfeiture of the undertaking to the employee; it does not provide for the release of funds to individuals who posted the undertaking on behalf of the employer.”

Citing Tabarrejo v. Superior Court, (2014) 232 Cal.App.4th 849

The exact facts of this case are a bit murky. It seems there was also a corporate defendant at the Labor Commissioner, but since the corporation was suspended it could not participate in the appeal. I’m assuming Gbolahan was a managing agent or director of the corporation . It’s possible the hearing officer allowed the employee to “pierce the corporate veil,” but Gbolahan more likely was held liable under Labor Code section 558.1.

It also seems there may have been a settlement of some sort because the decision talks about a “stipulation” between the parties regarding attorneys’ fees. I suspect the employer agreed to pay the full amount of the award, and possibly some amount of attorneys’ fees, once the employer realized he would be responsible for the employee’s reasonable attorneys’ fees if the employee recovered any amount.

I cannot tell whether the employer was represented when he filed the appeal or when he resolved the case. If he was represented when the appeal was filed, then hopefully the attorney advised Gbolahan about the risks involved in appealing Labor Commissioner decisions.

I don’t know why the “stipulation” between the parties did not address the disposition of the bond. This could have been a critical error. When resolving claims, be sure to resolve all claims, and consider what and how the payment will be made.

Whether you are the employee or the employer, deciding whether to appeal a Labor Commissioner claim requires thinking through all the possible consequences of the appeal. Even if you are confident in your position, a court will not necessarily rule in your favor. Appealing the Labor Commissioner decision can have adverse consequences for the employer and the employee.

If you are considering an appeal from the Labor Commissioner, or if you need assistance with a Labor Commissioner claim, contact the Nuddleman Law Firm, P.C. We are happy to help you defend or prosecute your claim.

Original Article by Robert Nuddleman of the Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Although not directly holding non-solicitation agreements as illegal restraints of trade in violation of California law, two 2018 cases seem to be moving the Courts, and the law, in that direction.

In Donald Golden v. California Emergency Physicians Medical Group, et al., 896 F.3d 1018 (2018) the Ninth Circuit Court of Appeals held, if restrictions in a settlement agreement impose a “restraint of substantial character” on future employment, they run afoul of California Business and Professions Code Section 16600, as an illegal restraint upon a former employee even if they do not prevent the former employee from competing for business with the former employer.

The Court held that Section 16600 prevented any contract from imposing a “restraint of substantial character” on an individual’s employment, irrespective of whether it limited the individual’s ability to “compete”. The Appellate Court engaged in a de novo review of the lower court’s analysis of the degree to which the post-employment restrictions in the settlement agreement hampered plaintiff’s ability to practice medicine and reversed the lower court on the basis that the settlement agreement language clearly imposed a restraint of substantial character upon Dr. Golden’s ability to practice medicine.

The Golden decision supports the view that, under Section 16600, post-employment restrictions will be considered to impose a “restraint of substantial character” on employment irrespective of their impact on the ability of the former employer to compete.

In AMN Healthcare, Inc. v. Aya Healthcare Services, Inc., 2018 Cal. App. LEXIS 989 (Nov. 1, 2018), the Court of Appeal of California, Fourth Appellate District, also held that employee non-solicitation agreements are void under California Business and Professions Code Section 16600 when such agreements restrain an individual from practicing their chosen profession, and indicated, in dicta, that employee non-solicitation agreements may be void in general under Section 16600, regardless of the circumstances. However, the Court of Appeal stopped short of holding that all nonsolicitation agreements are impermissible under California law. Yet, it expressed doubt over the continuing viability of older case law that applied a reasonableness standard to analyzing non-solicitation agreements.

California law has become extremely antithetical to non-solicitation agreements and companies should not assume they will be enforced by the Courts. Protection can still be provided through trade secret and confidential information agreements that impose enforceable restrictions on former employees so that the employer’s trade secret information is protected. If you are still using a non-solicitation agreement in your business that has not been reviewed for possible needed updates within the last several years, we suggest that you immediately contact your attorney to verify that it is still effective under current law.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

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